Constitutional issues
associated with integration:
the question of citizenship
Rubenstein, Kim “Constitutional issues
associated with integration: the question of
citizenship” Bureau of Immigration and
Population Bulletin No 11, 1994, pp 41-43
by Kim Rubenstein
Lecturer in Law
University of Melbourne
When asked to look at constitutional issues
associated with integration of immigrants in
Australia, the question of citizenship is
appropriate to consider. Citizenship is
important in terms of the Migration Act 1958,
as it appears that the principal support for the
Act is derived from the 'naturalisation and aliens
power' (section 51 (xix) of the Constitution).
The concept of citizenship is also vital for
integration issues because it represents
membership of a community.
As Michael Walzer has said, 'admission and
exclusion are at the core of communal
independence. They suggest the deepest
meaning of self-determination. Without them
there could be no communities of character,
historically stable, ongoing associations of men
and women with some special commitment to
one another and some special sense of common
life' (M. Walzer 1983, Spheres of Justice: A
Defence of Pluralism and Equality, p. 62). This
will therefore address two issues associated with
citizenship: the Migration Act 1958 and the
question of integration.
Citizenship and the
Migration Act 1958
The Migration Act 1958 is concerned with 'the
entry into and presence in Australia of aliens,
and the departure from Australia of aliens and
certain other persons' (preamble).
The Act itself does not define aliens, although it
has defined them in the past. The development
of Australian independence has had an influence
on the meaning of the term 'alien'. Before 1984
Australians had dual identities. We were both
Australian citizens (by virtue of the legislation in
1969) and also British subjects. However, in
1981 Britain removed the concept of British
subject from its legislation and Australia was the
only country to use the concept. In 1984 the
notion of 'Status of British Subject' was
discarded, leaving Australian citizenship as the
sole status.
The Shorter Oxford Dictionary defines alien as
'belonging to another person, place or family;
esp. to a foreign nation or allegiance'. The High
Court in Nolan v. Minister for Immigration and
Ethnic Affairs (1988) 165 CLR 178 defined an
alien generally as a person born outside
Australia whose parents were not Australian
citizens and who has not been naturalised under
Australian law or a citizen who has ceased to be
a citizen by an act or process of denunciation.
In essence, this means they are non-citizens.
Under the Migration Act 1958 non-citizens'
movement in and out of Australia is regulated
and non-citizens can become illegal entrants and
subject to deportation under certain
circumstances.
The status of citizenship is therefore
fundamental to migration law in that it controls
the Commonwealth Parliament's power to
legislate in this area. The principal head of
power relied on in relation to the Migration Act
is, in fact, the 'naturalisation and aliens' as it
regulates the movement of aliens in and out of
Making Multicultural Australia Constitutional issues associated with integration:
the question of citizenship
1
the country. The High Court of Australia has
not provided a conclusive view on the scope of
the immigration power itself. Justice Gibbs of
the High Court stated that a 'person who has
immigrated into Australia will pass beyond the
range of the power when the act or immigration
is at an end - i.e. when that person has become
a full member of the Australian community' (Ex
parte Henry (1975) 133 CLR 369 at 373).
So the notions of citizenship and absorption
into the Australian community are vital in a
legal sense as well as in terms of a sense of
nationhood and identity.
Notions of nationhood integration
Citizenship is a fundamental concept in terms
of integration. If a community wants to foster a
sense of inclusion among peoples from different
backgrounds then citizenship can be a useful
tool. The meaning of Australian citizenship has
been raised as a matter for inquiry for the
Senate Standing Committee on Migration. It
has had referred to it the following issues to
consider:
(a)
Australian citizenship, the place it
should hold in Australian society, ways
of making it carry more meaning for
all Australians, and how the Act might
be amended to enhance these
objectives.
At present citizenship in Australia is acquired in
the following ways: (i) by birth, if at the time of
the person's birth in Australia, at least one
parent is an Australian citizen or an Australian
permanent resident; (ii) by adoption if adopted
by an Australian citizen; (iii) by descent, if a
parent is an Australian citizen and registers the
child's name at an Australian consulate within
18 years of the birth, or (iv) by grant of
citizenship. The Act itself does not set out what
Australian citizenship actually involves - what
the rights, obligations and duties of Australian
citizens are.
(b)
The appropriateness of the present
discretionary provisions of the grant of
Australian citizenship (ss. 13(4)(b)(i)(v), (9) of the Act).
These discretionary provisions set out criteria to
be satisfied in relation to the granting of
citizenship to permanent residents. At present,
they include having been in Australia as a
permanent resident for a total of two years
immediately before the application. They also
include being at least 18 years old, capable of
undertaking the nature of their citizenship
application, having a basic knowledge of
English, understanding the responsibilities and
privileges of Australian citizenship, being of
good character, and likely to live permanently in
Australia or maintain close and continuing
association with Australia.
(c)
Section 17 of the Act in relation to
dual citizenship, any inconsistencies on
the operation of the section and how
such inconsistencies may be overcome.
The inconsistency is as follows - a person who is
an Australian citizen and who acquires the
nationality or citizenship of a foreign country
and does so with the sole and dominant purpose
of acquiring that nationality shall cease to be an
Australian citizen. Therefore, an Australian
citizen is not able to seek another citizenship.
However, a person who is a citizen of another
country and is a permanent resident in Australia
and seeks to become an Australian citizen is
entitled to maintain the previous citizenship if
the country of origin entitles that person to take
on another citizenship without losing their
current citizenship. The right to dual citizenship
therefore depends on the country of origin.
For example, a German citizen who seeks to
become an Australian citizen, as far as I am
aware, does forfeit his or her right to German
citizenship, but that decision is made by the
German not the Australian Government.
Therefore, the anomaly is that some Australian
citizens are entitled to dual citizenship and
others are not - it depends on the birthplace of
Making Multicultural Australia Constitutional issues associated with integration:
the question of citizenship
2
the Australian citizen. While this is so, a recent
decision of the High Court of Australia in
relation to dual citizenship displays that dual
citizens are treated differently with respect to
their eligibility to be a Member of the
Commonwealth Parliament.
The Constitution sets out the grounds for
disqualification from office in section 44 and
one of those is:
44 (i) Any person who is under any acknowledgment
of allegiance, obedience, or adherence to a foreign
power, or is a subject or a citizen or entitled to the
rights or privileges of a subject or a citizen of a
foreign power shall be incapable of being chosen or
sitting as a Senator or Member of the House of
Representatives.
In the High Court case Sykes vs Cleary (1993)
67 ALJR 59, the persons concerned were
Australian citizens and in their oaths of
citizenship had renounced all other citizenship.
However, by the law of the original country
they were still citizens. The Court held that
those persons must take reasonable steps to
divest themselves of the other citizenship and as
none of them has done so they were disqualified
by virtue of section 44. This caused much
discussion within the Australian community and
it is discussion relevant to the Australian
Citizenship Act 1958 and the notion of dual
citizenship.
In this world in which we now live, with
heightened connections between countries and a
sense of community reaching beyond national
borders, one has to ask is the sense of loyalty to
one country, and one country only, so
important for citizenship?
(d)
The appropriateness of the current
provisions of the Act in relation to
deferral and deprivation of citizenship.
overseas-born children of Australian
citizens.
This has been discussed above in relation to the
present law for obtaining citizenship. As can
probably be sensed from the terms of reference,
the notion of citizenship is not altogether clear
and comprehensible and it is certainly worthy of
a review of this kind. However, this emphasises
the importance of the need to determine what it
means to be a member of the Australian
community and this has an immediate effect on
the alien or non-citizen who wishes to integrate.
For the most fundamental way of integrating in
a formal or legal sense is to become a citizen of
that country. Unfortunately, as we can see from
human experience, often the formal or legal
expression may be just that, and it is important
to translate that to a practical and meaningful
expression of membership of a community. That
must ultimately involve a sense of commonality
and common purpose, even if it is as abstract as
respecting each other’s rights to lead different
lifestyles. At the core of all this is some sense of
humanity and respect for one another.
These are matters that Australians are seeking to
deal with in both an abstract and concrete way.
The concrete can be seen in the Migration Act
1958 and the direct effect that citizenship has
on constitutional and legal issues related to it.
But perhaps more fundamental is the question
of integration. How do we continue to foster a
culture in which people from diverse
backgrounds and experience can comfortably
create a community at the same time as
nurturing their own experience? Citizenship
may be vital in answering that question.
This article is adapted from a section of a paper
presented at the Australia Day Symposium in
Potsdam, Germany, on 4 February, 1994.
These currently include the case explained
above, renunciation by the person, and serving
in the armed forces of an enemy country.
(e)
The acquisition of citizenship of
Making Multicul tural Australia Constitutional issues associated with integration:
the question of citizenship
3